Balkinization: Response to the Symposium

Response to the Symposium

Guest Blogger

For the Symposium on Timothy William Waters's Boxing Pandora: Rethinking Borders, States, and Secession in a Democratic World (Yale University Press, 2020) and F. H. Buckley's American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020).

F.H. Buckley

I thank those who’ve commented on American Secession: The Looming Threat of a National Breakup, and in particular Sandy and Jack for sponsoring the discussion. The book argues that there is a real possibility of a successful secession movement in the United States and explains how it might happen. It was not a plea for secession, as Professor Tsai seems to think. I should have thought that the word “threat” in the title might have been a tip-off.

The subject interests me because I lived through a secession referendum in Canada. The United States has a very different history, and the unhappy precedent of Session 1.0 in 1861 makes it less likely that Secession 2.0 would succeed here. Could there ever be an American secession, then? I suggest it might happen, for three reasons.

First, we’re almost as divided as we were in 1861, in our casual displays of hatred and contempt for those on the other side. The puzzle is why people would want to live in the same country with people they think deplorable, and who might tip an election in ways that infuriate them. Compared to today’s America, there was vastly more civility and even friendship in Québec, across the oui ou non divides, during the 1980 and 1995 secession referenda.

Second, bigness is badness. Since 1787 we’ve become much larger, and very large countries such as ours are more likely to be unhappy, unfree and corrupt, as I show in the empirical section of the book. One-size-fits-all rules work much better in smaller countries. Apart from Professor Waters, however, no one paid much attention to my simple statistical regressions. The Framers would not have been so incurious. They looked for historical parallels wherever they could find them, and one of the greatest of issues at their Convention was the optimal size of a state.

Third, modernity lowers the stakes on a break-up. If things went the wrong way, we’d be more likely to get into a U-Haul than to buy a gun. Tiebout sorting goes on at present, and secession would take it to the next level. That also was the story of the Québec referenda.

To be clear, no state has a unilateral right of secession. The votes of people in other states matter too, and the vexed questions of the division of federal property and the seceding state’s assumption of its share of the national debt would remain to be discussed. Also on the table would be the military guarantees and alliances needed to calm Jack Balkin’s fears about the geopolitical consequences of a breakup. But a flat refusal by the federal government to embark on those negotiations would likely set the stage for a Constitutional Convention to resolve the issues.

All that leads me to think that the best guide on how a court might react to a successful secession referendum was provided by the Canadian Supreme Court in its Clarity Reference. The question the Canadian Court asked was whether a clear vote for secession in a province could be ignored, and the answer it gave was no, given that democracy is a fundamental norm in the Canadian constitution. Is it less so in America? Democratic countries such as Canada and Britain have shown themselves willing to countenance a breakup if supported by a clear majority in one part of the country. Are we less democratic than they are?

Professor Nicoletti tells us that the American Supreme Court would never reverse its Texas v, White decision which had ruled that there was no right to secession. That decision assumed that the Articles of Confederation remained in force in 1787. If so, however, George Washington was illegally elected president in 1789 since the last states to ratify the new constitution did so only in 1790. That’s one possibility. The other is that Texas v. White was wrongly decided. And rather than follow that case, I believe that an American court, mindful of democratic norms, would be inclined to follow the Canadian decision.

Could it happen, then? We’re not there yet and, while red and blue America seems very divided, there are red pockets in blue states and vice versa, as several commentators have noted. However, in 1995 the province of Québec was divided in just the same way, and the referendum there came within a hair’s breadth of succeeding. Much the same can be said of Virginia in 1861.

What about nationalism, the sense of love of country that binds us together? I can’t think that very powerful, not when the New York Times’ 1619 Project wins a Pulitzer and will likely serve as the basis of lesson plans in American high schools. The Project asks readers to rethink all of our history from the perspective of slavery and racial prejudice. “Out of slavery grew nearly everything that has truly made America exceptional: its economic might, its industrial power, its electoral system.” To be sure, there was a good deal of hypocrisy and contradiction on the Patriot side and authentic liberalism on the Loyalist side, as Simon Schama and Alan Taylor have reminded us. But the 1619 Project is so extreme that even the Times had to walk some of it back, and you have to ask why anyone would want to live in so infamous a country.

Then there’s Professor Tsai’s fear that seceding states, or what remains of America, might enact retrograde laws. There wouldn’t be a return to Jim Crow. The Canadian example shows that exit rights would not result in great changes in countries where liberal principles have so strongly taken hold. What might be up for grabs, however, are abortion and same-sex marriage, which I expect Tsai would describe as “principles that have changed what it means to be Americans.” And that, I think, explains why liberals would refuse to recognize secession rights.

It’s not about democracy. Rather, it’s about the opposite: Power. More specifically the power to dictate the meaning of the constitution, and (as Chuck Taylor has noted) to label as barbarians anyone who objects. An overlord clerisy, sure of itself and intolerant of dissent, fondly imagines that it holds that power, and realizes that secession would mean its abandonment over some of the country. But what if that power were lost in any event? What if, in a second Trump administration, a very different constitution emerges?

In that case, the liberal might ask himself why he should want to be taxed to send federal moneys to poorer states inhabited by people he despises? In Quebec, anti-separatist federalists reminded voters that Quebec was a net recipient of money from Ottawa. They spoke of fédéralisme rentable—profitable federalism. In California, however, it’s a matter of séparartisme rentable.

As a smaller and separate point, I argued that originalists would concede that states have exit rights, given that so many of the Framers were willing to contemplate a breakup should the 1787 Convention fail to agree on a new constitution. Professor Tsai disagrees. He says that Madison nowhere asserted that a single state had exit rights. Madison was an extreme nationalist and the big loser at the Convention, but even he said that, should the federal government invade a state, as happened in my Alexandria on May 24, 1861, that would give it reason to secede. “The use of force against a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound” (Farrand, at I.54; see also Farrand I.165; Farrand I.320; Farrand II.19-20 n; 3 Elliot’s Debates 414-15, June 14, 1788; sed contra Farrand II.93).

Yes, there is a Madison problem. Theories, for Madison, burned with a hard, gem-like flame, which explains his popularity amongst legal academics, that and the silly conceit that he was the “father of the Constitution.” But Madison was a supple theorist and when one theory proved inconvenient, he could always find another.

Implicitly, I was siding with “original intent” rather than “public meaning” originalists, and am chided by Professor Tsai for this. Now, there are several reasons to reject public meaning theories, but let me mention one. As a canon of interpretation, originalism in-one-country is a non-starter. If public meaning theories are to be followed, then, and the 1867 British North America Act were so interpreted, it would follow that Canada is and should be an absolute monarchy which Queen Elizabeth can rule the way Charles I ruled England. That is not what the Fathers of Confederation intended, to be sure, in the BNA Act.

I don’t doubt but that the Queen would do a good job of it, mind.

F.H. Buckley is Foundation Professor at Scalia Law School at George Mason University. You can reach him by e-mail at fbuckley at gmu.edu.

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